Criminal Practice
Rights of a suspect being detained by the police for questioning
Right to legal advice (s 58 PACE)
s. 58: the right for any suspect to access free and independent legal advice at their request at any time.
Once they ask, should be allowed to consult a solicitor ‘as soon as is practicable’
Unless a suspect asks for legal advice to be paid for privately, the police must contact the Defence
Solicitor Call Centre (DSCC) – even if the suspect has asked for a named solicitor or firm. The DSCC
then determines whether the case is such that telephone advice is sufficient or whether a solicitor
should attend.
o Telephone: provided free through Criminal Defence Direct (CDD). If the suspect wishes for a
particular solicitor, they may have to pay for it.
o In-person: suspect’s own solicitor or duty solicitor is notified and suspect must be notified as
soon as they arrive at the station and then asked if they would like to see them. All this to be
logged in the custody record.
The police should never act in a way to dissuade a suspect from seeking legal advice. Should also
not indicate to any suspect that their time in custody may be reduced if they do not ask for legal
advice or agree to be interviewed without waiting for the solicitor to arrive.
The right to delay legal advice
The police have a very limited right to delay, only up to 36 hours, by at least a superintendent, must be for
an indictable offence (incl. either way).
Only if the officer has reasonable grounds for believing that exercising the right to advice will:
o Interfere or harm the evidence connected to the offence
o Lead to another suspect being alerted who have not yet been arrested
o Hinder the recovery of any property obtained as a result of the offence
Authorisation can be given orally but should be confirmed in writing.
Right to have someone informed of arrest (s 56 PACE)
s 56: grants the right to one friend or relative to be told of the arrest as soon as is practicable.
Failure by the police to grant this right: the court has a discretionary power to exclude any confusing
or muddled answers given subsequently in an interview.
The right to delay informing someone
Fairly easy to delay for maximum of 36 hours. Can be done by an officer of at least the rank of inspector
and only for indictable offences (incl either-way).
Must have reasonable grounds to believe that telling of the arrest will:
o Interfere or harm the evidence connected to the offence
o Lead to another suspect being alerted who have not yet been arrested
o Hinder the recovery of any property obtained as a result of the offence
Authorisation can be given orally but should be confirmed in writing.
,Detention time limits under PACE
Initial maximum period of detention BEFORE charge
A person shall not be kept in police detention for more than 24 hours from the relevant time without being
charged (s 41)
Relevant times depends on status of suspect:
Voluntarily attending the police station = at the time of their arrest, if they are then arrested
Attending to answer ‘street bail’ = when they arrive at the police station
Arrested away from the police station = at the time of arrival at the first police station
Extending the maximum period of detention
The police may extend the detention period to 36 hours (i.e. an additional 12 hours) from the ‘relevant
time’ (s 42)
Authorisation can only be given by an officer of the rank of superintendent or above and they must
have reasonable grounds for believing all of the following:
a) the detention of the suspect without charge is necessary to secure or preserve evidence relating
to an offence for which the suspect is under arrest, or to obtain such evidence by questioning
them;
b) the offence is an indictable offence (incl. either-way);
c) the investigation is being carried out diligently and expeditiously.
The police can also seek a warrant from a magistrates court to further detain a suspect (s 43)
For as long as magistrates see fit but up to a maximum of a further 36 hours (on top of
superintendent’s power to delay, resulting in a total of 72 hours/3 days).
Magistrates will only grant this if they have reasonable grounds that further detention is justified.
Only if:
a) further detention is necessary to preserve evidence or obtain evidence by questioning them
b) the investigation is being carried out diligently and expeditiously.
In exceptional cases, the police could seek an extension of the warrant of further detention from
magistrates (s 44). Only if justified and cannot
a) be longer than 36 hours; or
b) end later than 96 hours/4 days after the relevant time
So, the absolute longest the police can detain a suspect in police custody BEFORE charge is 4 days.
Note: the maximum period of detention can never exceed 24 hours if the offence is a summary offence.
,Detention reviews
It is mandatory that an officer of at least the rank of inspector and not involved in the investigation must
carry out regular reviews of a detention to ensure it is still necessary (s 40).
1st: after 6 hours of detention being authorised
2nd: after 9 further hours
Subsequent = no more than 9 hour intervals.
, Advising a client whether to answer police questions
The solicitor’s role at the police station: to protect and advance the legal rights of their client. This may
require the solicitor giving advice which has the effect of that client avoiding giving evidence which
strengthens the prosecution case.
Information gathering on arrival at the police station:
1. The custody officer and custody record: a solicitor is allowed to be told basic information about the
circumstances of the client’s detention by the custody officer. They should be allowed to inspect the
custody record and detention log. The solicitor will need to obtain further details such as the alleged
offence, the time at which the client’s detention was authorised, any significant comments made by
the client e.g. admissions
2. The investigating officer: this person will be able to provide info about disclosure, significant
statements and/or silence and the next steps that the investigation officer proposes to take.
Disclosure: there is no legal obligation for the police to provide the solicitor with any
evidence of the case against the client. However, they will normally provide the solicitor with
some if not all of the details they have. Before a person is interviewed, the police must give
the solicitor sufficient information to enable them to understand the nature of any such
offence and why they are suspected of committing it.
A client whom the police wish to interview has four options:
1. Answer all questions put to them
Advised if the client is raising a specific defence which imposes an evidential burden on
them, and their defence is particularly strong.
Reduces the chance of the court drawing adverse inferences against the client.
Also advise if the client is admitting guilt and the police have a strong case.
2. Give a ‘no comment interview’
No danger of the client incriminating themselves.
Advised if the police’s case against the client is weak (and perhaps the client has admitted
guilt).
May be the best option if the solicitor believes that the police have not provided adequate
disclosure of the evidence, so that they are unable to properly advise the client on the
strength of the police case against them.
Advised if the solicitor believes that the client will perform badly an interview e.g. due to the
age, vulnerability, illness, etc
But increases the chance of having adverse inferences drawn against you.
3. Selective silence
This should not generally be advised.
4. Written statement: this is a ‘No comment’ interview, but either during the interview or before being
charged, hand a written statement to the police setting out facts the client will rely upon in their
defence at trial.
As long as the written statement sets out all the facts which the client later relies on in a
defence, handing in a written statement should avoid the risk of any adverse inferences
being drawn.
Rights of a suspect being detained by the police for questioning
Right to legal advice (s 58 PACE)
s. 58: the right for any suspect to access free and independent legal advice at their request at any time.
Once they ask, should be allowed to consult a solicitor ‘as soon as is practicable’
Unless a suspect asks for legal advice to be paid for privately, the police must contact the Defence
Solicitor Call Centre (DSCC) – even if the suspect has asked for a named solicitor or firm. The DSCC
then determines whether the case is such that telephone advice is sufficient or whether a solicitor
should attend.
o Telephone: provided free through Criminal Defence Direct (CDD). If the suspect wishes for a
particular solicitor, they may have to pay for it.
o In-person: suspect’s own solicitor or duty solicitor is notified and suspect must be notified as
soon as they arrive at the station and then asked if they would like to see them. All this to be
logged in the custody record.
The police should never act in a way to dissuade a suspect from seeking legal advice. Should also
not indicate to any suspect that their time in custody may be reduced if they do not ask for legal
advice or agree to be interviewed without waiting for the solicitor to arrive.
The right to delay legal advice
The police have a very limited right to delay, only up to 36 hours, by at least a superintendent, must be for
an indictable offence (incl. either way).
Only if the officer has reasonable grounds for believing that exercising the right to advice will:
o Interfere or harm the evidence connected to the offence
o Lead to another suspect being alerted who have not yet been arrested
o Hinder the recovery of any property obtained as a result of the offence
Authorisation can be given orally but should be confirmed in writing.
Right to have someone informed of arrest (s 56 PACE)
s 56: grants the right to one friend or relative to be told of the arrest as soon as is practicable.
Failure by the police to grant this right: the court has a discretionary power to exclude any confusing
or muddled answers given subsequently in an interview.
The right to delay informing someone
Fairly easy to delay for maximum of 36 hours. Can be done by an officer of at least the rank of inspector
and only for indictable offences (incl either-way).
Must have reasonable grounds to believe that telling of the arrest will:
o Interfere or harm the evidence connected to the offence
o Lead to another suspect being alerted who have not yet been arrested
o Hinder the recovery of any property obtained as a result of the offence
Authorisation can be given orally but should be confirmed in writing.
,Detention time limits under PACE
Initial maximum period of detention BEFORE charge
A person shall not be kept in police detention for more than 24 hours from the relevant time without being
charged (s 41)
Relevant times depends on status of suspect:
Voluntarily attending the police station = at the time of their arrest, if they are then arrested
Attending to answer ‘street bail’ = when they arrive at the police station
Arrested away from the police station = at the time of arrival at the first police station
Extending the maximum period of detention
The police may extend the detention period to 36 hours (i.e. an additional 12 hours) from the ‘relevant
time’ (s 42)
Authorisation can only be given by an officer of the rank of superintendent or above and they must
have reasonable grounds for believing all of the following:
a) the detention of the suspect without charge is necessary to secure or preserve evidence relating
to an offence for which the suspect is under arrest, or to obtain such evidence by questioning
them;
b) the offence is an indictable offence (incl. either-way);
c) the investigation is being carried out diligently and expeditiously.
The police can also seek a warrant from a magistrates court to further detain a suspect (s 43)
For as long as magistrates see fit but up to a maximum of a further 36 hours (on top of
superintendent’s power to delay, resulting in a total of 72 hours/3 days).
Magistrates will only grant this if they have reasonable grounds that further detention is justified.
Only if:
a) further detention is necessary to preserve evidence or obtain evidence by questioning them
b) the investigation is being carried out diligently and expeditiously.
In exceptional cases, the police could seek an extension of the warrant of further detention from
magistrates (s 44). Only if justified and cannot
a) be longer than 36 hours; or
b) end later than 96 hours/4 days after the relevant time
So, the absolute longest the police can detain a suspect in police custody BEFORE charge is 4 days.
Note: the maximum period of detention can never exceed 24 hours if the offence is a summary offence.
,Detention reviews
It is mandatory that an officer of at least the rank of inspector and not involved in the investigation must
carry out regular reviews of a detention to ensure it is still necessary (s 40).
1st: after 6 hours of detention being authorised
2nd: after 9 further hours
Subsequent = no more than 9 hour intervals.
, Advising a client whether to answer police questions
The solicitor’s role at the police station: to protect and advance the legal rights of their client. This may
require the solicitor giving advice which has the effect of that client avoiding giving evidence which
strengthens the prosecution case.
Information gathering on arrival at the police station:
1. The custody officer and custody record: a solicitor is allowed to be told basic information about the
circumstances of the client’s detention by the custody officer. They should be allowed to inspect the
custody record and detention log. The solicitor will need to obtain further details such as the alleged
offence, the time at which the client’s detention was authorised, any significant comments made by
the client e.g. admissions
2. The investigating officer: this person will be able to provide info about disclosure, significant
statements and/or silence and the next steps that the investigation officer proposes to take.
Disclosure: there is no legal obligation for the police to provide the solicitor with any
evidence of the case against the client. However, they will normally provide the solicitor with
some if not all of the details they have. Before a person is interviewed, the police must give
the solicitor sufficient information to enable them to understand the nature of any such
offence and why they are suspected of committing it.
A client whom the police wish to interview has four options:
1. Answer all questions put to them
Advised if the client is raising a specific defence which imposes an evidential burden on
them, and their defence is particularly strong.
Reduces the chance of the court drawing adverse inferences against the client.
Also advise if the client is admitting guilt and the police have a strong case.
2. Give a ‘no comment interview’
No danger of the client incriminating themselves.
Advised if the police’s case against the client is weak (and perhaps the client has admitted
guilt).
May be the best option if the solicitor believes that the police have not provided adequate
disclosure of the evidence, so that they are unable to properly advise the client on the
strength of the police case against them.
Advised if the solicitor believes that the client will perform badly an interview e.g. due to the
age, vulnerability, illness, etc
But increases the chance of having adverse inferences drawn against you.
3. Selective silence
This should not generally be advised.
4. Written statement: this is a ‘No comment’ interview, but either during the interview or before being
charged, hand a written statement to the police setting out facts the client will rely upon in their
defence at trial.
As long as the written statement sets out all the facts which the client later relies on in a
defence, handing in a written statement should avoid the risk of any adverse inferences
being drawn.
